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No. 37261
GOVERNMENT GAZETTE, 24 JANUARY 2014
other developments that may not have been anticipated in the original legislation. As the
convergence of technologies gather pace, the ability of both the Minister and ICASA to take
appropriate action timeously will become important. Before the Minister issues the directive,
he or she must first consult the Authority, notify the public of the intentions to issue a
directive, and solicit public comment. After this, the policy directive is issued to ICASA, which
must consider it. Yet the statutes governing ICASA require it to again publish draft
regulations based on the directive for public input. The consultation required is lengthy and
repetitive, effectively preventing timeous and effective decisions. An amended law could
allow for a quicker process if the public consultation processes were combined, and the draft
regulations were published at the same time as the initial policy directive. In some cases the
outcomes of a policy directive or even of legislative clauses have yielded results that are
contrary to the policy aims. This raises the question of whether ICASA should not be
required to consult the Minister prior to finalizing the regulations. This would enable the
Minister to confirm that the regulations are in line with policy objectives that the directive
originally sought to address. Such a consultative process becomes more important, taking
into consideration that there is no room for government participation in the consultation
processes of the Authority.
12.3.2 Constitutional Independence of ICASA
Despite the Constitutional requirement for an independent regulatory authority, which is
reflected in the founding legislation, discussions about the meaning of independence have
arisen depending on decisions made and activities undertaken by the regulator or
government.
There have been many Constitutional reviews and judgements in South Africa concerning
the conditions under which constitutional independence can be exercised and therefore how
it is guaranteed. In its first review, considering the provisions for the independence of the
Public Service Commission, the Reserve Bank, the Auditor General and Public Protector,
the Constitutional Court observed that independence must be considered "against the
background of the nature of the particular institution" taking into consideration its particular
powers and functions. The Court ruled though that factors relevant to independence related
to provisions for appointment, tenure, and removal from office as well as institutional
independence.
These judgements suggest that constitutional independence relates to such factors as
financial independence, institutional independence and administrative independence with
respect to matters directly related to the institution's mandate, appointment procedures for its
officers and their security of tenure. The current provisions that established ICASA were
crafted to meet these constitutional independence tests.
The changing technological environment and market uncertainty has thrown into focus the
roles and responsibilities of various players, as well as the definition of independence. The
2005 Canadian Review of the Telecommunications Policy Report considered the question of
independence from the policy perspective in a similar manner to the persistent question
about the relationship between policy and regulation in South Africa. This Review Panel
concluded that the independent regulator was bound by legislated policy and that "statute is
the formal expression of a legislative policy, therefore before a statute can be drafted, the
policy sought to be implemented by it must be determined."
The Review discussion document indicated that even different regulators could be required
to regulate some activities that now fall in the ambit of ICASA in the South African
environment. "Around the world today, it is generally accepted that the best approach to
allocating governance and operating functions within the telecommunications sector is as
follows:
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